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A Facebook Invitation for Trouble: Legal Issues of Internet Sleuthing and Employee Posts

March 8, 2018Articles SC Lawyer Magazine

Social media is inescapable, whether it's your aunt's posts on Facebook, a political argument erupting on Twitter or an Instagram picture of your friend's pancakes. Many people share their daily movements, thoughts and habits on their personal social media accounts. These accounts can be a wealth of information for a prospective employer, but using the information learned from these sources during the hiring process can create problems. Additionally, employees often use their own social media accounts to make comments about working conditions, fellow employees or their supervisors. While employers may want to discourage this type of behavior, taking action against an employee who posts such information could violate federal or state laws.

Federal law prohibits employers from considering a variety of factors in their hiring decisions. These include race, national origin, religion, gender, age and disability.1 Numerous states have also passed laws prohibiting discrimination based on sexual orientation and gender identity.2 However, a social media search could provide this information to a prospective employer, and employers must be cautious that, should the employer learn it, this information does not have an impact on any hiring decisions. Discrimination laws apply even during the hiring process, and plaintiffs have had some success when asserting claims for pre-hire discrimination.

In Gaskell v. University of Kentucky,3 the plaintiff asserted claims based on alleged religious discrimination. In 2007, the University of Kentucky was planning to hire a founding director for its new observatory. Gaskell applied for the position, and there was no dispute that, based on his application, Gaskell was a leading candidate.4 Gaskell was then invited to participate in a phone interview, after which he was at or near the top of the list of candidates for many members of the search committee.5 One of the members of the search committee conducted an internet search for information about Gaskell and found a link to his personal website, which included an article entitled “Modern Astronomy, the Bible, and Creation.”6 The committee member became concerned that Gaskell espoused views supportive of a creationist theory of evolution, which was not supported by the university. There was no evidence, however, that his personal views impacted his teaching or his other credentials. The biology department at the University of Kentucky expressed concern about Gaskell's alleged creationist views and claimed it would not support his hiring based on these views.7 Gaskell was not hired for the observatory director position and he sued the university, claiming that the university discriminated against him based on his religious beliefs.8 The University of Kentucky filed for summary judgment, but the court denied the motion.8 The court found that Gaskell had presented direct evidence of possible religious discrimination, meaning there was a question as to whether his religious beliefs were a substantial motivating factor in the decision not to hire him.10 Ultimately, Gaskell settled with the University of Kentucky for $125,000.11

The pro se plaintiff in Nieman v. Grange Mut. Cas. Co.12 survived the defendant's motion to dismiss his claims of age discrimination. The plaintiff had included his college graduation date on his LinkedIn profile, and the potential employer asked and confirmed it was the correct year.13 The plaintiff claimed that it would not have been difficult for the prospective employer to determine that someone who graduated from college in 1989 was over the age of 40 in 2010, placing the employer on notice that the plaintiff was subject to statutes and regulations concerning age discrimination. The individual who was hired obtained his college degree in 1994, making him younger than 40 in 2010. The court denied the company's motion to dismiss, stating the plaintiff had provided sufficient evidence to state a claim for discrimination.14 While there is no further information about the resolution of this case, it shows how easily an employer can mistakenly learn information in a social media search that could expose it to allegations of discrimination during the hiring process.

Given the possible pitfalls of such social media searches, the question then becomes: Is the information that could be learned worth the risk? The answer will be employer and industry-specific, but there are certain ways an employer can try to protect itself. First, have someone in the human resources department or who is separated from the actual hiring process conduct the search rather than the future direct supervisor or someone in a hiring position. This ensures that the individual who makes the final hiring decision is not influenced by any of the unlawful considerations. Second, document the internet search. An employer could create a form the individual conducting the search completes in order to ensure that the search is applied consistently for all applicants. Additionally, the web pages on which any relevant information appears should be printed and included in the applicant's file in order to provide supporting documentation. Third, employers should treat any negative information discovered carefully. The applicant might not be responsible for the image or post, or it might not even be the candidate. Fourth, an employer should never ask for the applicant's social media usernames or passwords, or access a website beyond that which is public.15 Finally, an employer can delay the social media search until later in the hiring process. This could not only allow the employer to ensure employers are not influenced early in the process by unlawful consideration, but also it is in line with a current more employee-friendly trend in the law. Over half the states (but not South Carolina) have adopted so-called “ban the box” policies, meaning that employers must remove from job applications any questions asking applicants about conviction histories, and must delay conducting background checks until later in the hiring process.16 By both deleting this question about convictions and postponing a social media search, an employer can get to know qualified candidates without the potential of being improperly influenced.

Social media can be an issue not only during the hiring process, but also during employment itself. Many employers have social media policies in order to provide guidelines for or to govern employee behavior. However, such social media policies can run afoul of Sections 7 and 8 of the National Labor Relations Act (NLRA).17 Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”18 Section 8(a) of the NLRA is the enforcement mechanism, making it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA.19 When it comes to policing social media policies, the National Labor Relations Board (NLRB) has primarily focused on the “concerted activities” portion of the statute. In general, concerted activities includes discussions and social media posts that focus on working conditions, such as wages, company policies and actions by supervisors or other employees.

However, the NLRB may shift its focus away from such enforcement depending on the actions of the current presidential administration. The NLRB under President Trump has withdrawn Obama-era guidance and policies that were considered more union or employee-friendly. It is unclear whether the NLRB's new more employer-friendly stance will impact future interpretations of social media policies.

In the past, there have been numerous cases brought by the NLRB against employers based on allegations that the employer's actions or social media policies infringe on an employee's rights to discuss working conditions. In a matter involving Triple Play Sports Bar and Grille,20 the NLRB focused specifically on the outer limits of actions constituting concerted activity. Two employees for Triple Play engaged in a discussion over Facebook during which they criticized their employer's failure to properly withhold taxes and other perceived issues of their working environment.21 During this discussion, which occurred on the employees' private Facebook pages but was visible to other individuals, the employees used profane and insulting language. When the employer discovered these posts, the employees were terminated.22 The employer agreed that the employees' discussion was protected concerted activity, but it argued that because the conduct involved profane and offensive language, it became so disloyal that the employees no longer enjoyed the protections of the NLRA.23 The NLRB disagreed with the employer, finding the statements were protected. Additionally, the NLRB held that the employer's “internet/blogging” policy violated the NLRA because employees could reasonably believe the policy prohibited discussions about the terms and conditions of employment.24

The NLRB also examined posts on Twitter in a matter involving Chipotle Services LLC (Chipotle) and the Pennsylvania Workers Organizing Committee.25 A crew member at a Chipotle restaurant in Pennsylvania tweeted a news article about hourly workers being required to work snow days and a tweet responding to a customer stating that the food at Chipotle was not free and was instead based on cheap labor.26 This employee was asked to delete the tweets based on the Chipotle social media policy, and he complied. However, the crew member was later terminated for asking fellow employees to sign a petition regarding the restaurant's break policy.27 An administrative law judge originally held these tweets were protected, but a full panel reversed in a two to one decision, stating these were individual complaints rather than concerted activity.28 However, the panel also found that the circulated petition was considered protected activity; therefore, the employee should not have been terminated. Further, even though the employee's two tweets were not protected activity, two provisions of Chipotle's social media policy were held to be problematic because they were vague and ambiguous. The fact that Chipotle's social media policies included a disclaimer stating that the policy “did not restrict any activity that is protected or restricted by the NLRA” could not cure the unlawfulness of the two ambiguous provisions.29 The Court of Appeals for the Fifth Circuit denied review of the NLRB's decision.30

Although the NLRB has been critical of employers restricting employees' social media posts, not all posts related to employment have been protected.31 Two individuals, Ian Callaghan and Kenya Moore, were employed as activity leaders at a teen activity center. The center sent re-hire letters to Callaghan and Moore, but Moore was demoted because her summer program supervisor had given her a poor performance review.32 Moore and Callaghan then engaged in a profanity-laced exchange on Facebook about work, including statements that they planned to disregard certain safety rules, undermine the center's leadership and neglect their job duties.33 After learning of this exchange, the center rescinded Moore and Callaghan's re-hire letters, stating that it was concerned about the safety of the participants if Moore and Callaghan were engaged in insubordinate and dangerous behavior. The NLRB determined that the internet discussion was not protected activity as it advocated planned insubordination.34 These plans included sufficient detail and were of such a large magnitude that the center had reasonable concern about the safety of the participants. Therefore, the center was not required to wait until after the employees committed the planned misconduct before taking action against Moore and Callaghan.35 While an extreme example, this shows that posts only tangentially related to employment conditions will not be protected.

These are just a few instances in which the NLRB examined an employer's social media policy. The NLRB has been taking very harsh looks at the social media policies, but it has also provided some guidance. In 2014, the NLRB promulgated language it considered lawful. In general, the recommendations are that social media policies include statements that do not explicitly prohibit employees from posting information about their jobs or coworkers but rather urge employees not to do so if the postings might create morale issues. The types of social media polices that have gained the approval of the NLRB are those in which the language is couched in terms of suggestions. For example, phrasing such as asking employees to be thoughtful in communications and dealings with others, including emails and social media posts, and to refrain from making harassing or threatening comments are considered valid provisions. These approved social media policies focus on the manner in which statements are articulated. If employers use this type of language, the NLRB has generally considered that it would be unreasonable for an employee to conclude the employer discouraged all job-related postings. Moreover, employers can prohibit employees from making negative comments about customers as this would be unrelated to job conditions. Employers can also request employees respect copyright, trademark, trade secret and other similar laws, and only use this information in compliance with the proper legal standards.

In writing a social media policy, an employer should be clear as to who manages the company's official social media pages, including who has the ability to edit such pages. Employers should also include a provision stating that employees cannot post confidential information or intellectual property or make comments about specific customers or clients. However, such provisions should be clearly defined. Appropriate social media policies should not rely on broad restrictions, vague definitions, expansive statements strictly controlling employees' actions away from work, or a disclaimer stating that the policy does not restrict NLRA protected activity.

Social media has and will continue to play a major role in our lives. Prospective employers can learn a lot about applicants through a social media search, but such a search must be completed carefully in order to ensure it complies with all anti-discrimination laws. Current employees will likely make use of social media to discuss their jobs and working conditions. While such public complaints or negative statements may be frustrating for employers, they must be careful they do not terminate or take action against employees if the activity is protected by the NLRA. Additionally, employers should have a social media policy in order to protect their confidential information and encourage positive actions by employees, but these policies cannot include vague or ambiguous language. At the end of the day, both employees and employers should think carefully before they search, comment or tweet.

Reprinted with permission from the South Carolina Bar. The article originally appeared in the March 2018 issue of SC Lawyer magazine.

1See, e.g., 42 U.S.C. § 2000 et seq.
2 See Non-Discrimination Laws, Movement Advancement Project (Nov. 9, 2017), http://www.lgbtmap.org/equality-maps/non_discrimination_laws. South Carolina has not passed such a law.
3 No. 09-244-KSF, 2010 WL 4867630, at 1 (E.D. Ky. Nov. 23, 2010).
4 Id., at 3.
5Id.
6 Id., at 4.
7 Id., at 5.
8 Id., at 6.
9 Id., at 8-9.
10 Id., at 9-10.
11Glenn Branch, Settlement in the Gaskell case, National Center for Science Education (Jan. 8, 2011), https://ncse.com/news/2011/01/settlement-gaskell-case-006427.
12No. 11-3404, 2012 WL 1467562, at 1 (C.D. Ill. Apr. 27, 2012).
13Id., at 2.
14 Id.
15 In fact, it is illegal to ask for an applicant's password in twenty-three states: Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin; see Access to Social Media Usernames and Passwords, National Conference of State Legislatures (Feb. 27, 2017), http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx.
16 Beth Avery and Phil Hernandez, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (Aug. 1, 2017), http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.
1729 U.S.C. §§ 151-69.
18 29 U.S.C. § 157.
1929 U.S.C. § 158.
20 Three D, LLC, 361 N.L.R.B. No. 31, at 1 (Aug. 22, 2014).
21 Id., at 2.
22 Id., at 3.
23Id., at 4.
24 Id., at 9.
25 Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing Committee, 364 N.L.R.B. No. 72 (Aug. 18, 2016).
26 Id., at 7.
27 Id.
28 Id.,1 n.3.
29 Id., at 1-2.
30 Chipotle Services, L.L.C. v. National Labor Relations Board, No. 16-60667 (5th Cir. Jun.9, 2017).
31 Richmond District Neighborhood Center and Ian Callaghan, 361 N.L.R.B. No. 74 (Oct. 28, 2014).
32 Id., at 1.
33 Id., at 2.
34 Id., at 3.
35 Id.